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"(6) The constitution may provide for the sub-division of the public constituency into different geographical areas and categories to ensure that taken as a whole, those members of the board of governors elected by the public constituency will be representative of those eligible for membership of the public constituency."

The noble Lord said: My Lords, Amendment No. 29 aims to give foundation trusts the opportunity to sub-divide the public constituency into different electoral areas. I think that my noble friend's Amendment No. 7 has taken care of the issue of geographical sub-divisions. I am quite happy, and very much welcome that.

There is another issue for foundation trusts. My noble friend Lord Lipsey spoke about the need to get the wider spectrum of stakeholders on to the governing body. I very much agree with that. Clause 6(2)(b) regarding membership makes clear that in authorising a foundation trust, the regulator has to be concerned that,

My contention is that, if that is right for the membership, it must be right for the governing body. One would expect that the elements of the elected public constituency would reflect the actual membership of the foundation trust. My amendment seeks to allow foundation trusts discretion to propose a scheme of election allowing it to categorise membership into different categories—perhaps gender or age group. It might ensure that the ethnic diversity of a particular membership was reflected in the governing body.

Clearly, that discretion cannot be drafted in Parliament; it cannot be enunciated at national level. One has to allow for it at local level. I hope that the principle I have enunciated in my amendment finds

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support in the House and that my noble friend will be prepared to give this issue some consideration. I beg to move.

Baroness Finlay of Llandaff: My Lords, I briefly seek clarification from the noble Lord, Lord Hunt. Does the amendment mean that a person could not be a member of more than one foundation trust, because, if the constituencies are divided into geographical areas, people would either belong to one or the other? I was uncertain about that and about whether it would need to be done in collaboration with other foundation trusts so that the lines were clearly drawn.

Lord Hunt of Kings Heath: Well, my Lords, the Minister may want to respond to the issue of how the geographical splitting down of electoral constituencies impacts upon different trusts. Speaking for myself, I do not have any problem about individuals belonging to different foundation trusts. Indeed, I would welcome that. If someone had an interest in mental health or in acute care services, one would welcome them joining a mental health foundation trust or an acute services foundation trust.

I think that the geographical issue has been well satisfied by my noble friend's Amendment No. 7. The issue on which I seek some clarification from my noble friend is on ensuring that the mixture of people elected to the governing body reflects the actual membership.

Lord Warner: My Lords, I am grateful to my noble friend's acknowledgement that our Amendment No. 7 fits the bill, so to speak, on a geographical subdivision. We have some nervousness about the aspect of my noble friend's amendment which allows for sub-division of the public constituency into different categories. We are not sure that it is appropriate to allow that kind of sub-division. First, there is no real description of what type of categories are intended—for example, are we talking about age, disease group, gender or ethnicity—and no limits are placed on what is acceptable.

Secondly, allowing such categorisation would raise issues about what would happen for members who were fitted into more than one category. There are many complexities around that issue. Without making any promises whatever—and I do not want to raise false hopes in the noble Lord—I am happy to go away and think more about the matter. Certainly, our initial thoughts are that that is extraordinarily difficult, and certainly it is not easy to do in the Bill.

The noble Baroness, Lady Finlay, raised the issue of geographical areas. She asked whether a person could be a member of more than one constituency. Our understanding is that they can be a member of only one constituency for each NHS foundation trust.

My noble friend has been on a bit of a roll recently, so I hope that, against that background, he will be willing to withdraw his amendment and allow us to think again about the matter more quietly.

Lord Hunt of Kings Heath: My Lords, I am grateful to my noble friend for agreeing to look at the matter again.

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Of course I understand the complexities. We now have in the Bill his amendment allowing the Government to make regulations, which will help to clarify the electoral systems. All I seek is for foundation trusts to be allowed discretion to deal with the issues and to make proposals, which of course would have to be in line with the regulations that he intends to bring in later. I am most grateful to him for his constructive response. I beg leave to withdraw.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 to 33 not moved.]

Lord Warner moved Amendment No. 34:

    Page 110, line 33, leave out "public constituency" and insert "members of the corporation other than the members of the staff constituency"

On Question, amendment agreed to.

[Amendments Nos. 35 and 36 not moved.]

Lord Warner moved Amendment No. 37:

    Page 110, line 40, leave out "the area specified under paragraph 3(1)(a)" and insert "an area specified in the constitution as the area for a public constituency"

On Question, amendment agreed to.

The Deputy Speaker (Lord Lyell): My Lords, if Amendment No. 38 is agreed to, I will not be able to call Amendment No. 39.

Lord Warner moved Amendment No. 38:

    Page 111, line 1, leave out from beginning to "may" in line 2 and insert "An elected member of the board of governors"

On Question, amendment agreed to.

[Amendment No. 39 not moved.]

Lord Warner moved Amendment No. 40:

    Page 111, line 4, leave out from "But" to end of line 5 and insert "such a member ceases to hold office if he ceases to be a member of the corporation"

On Question, amendment agreed to.

[Amendments Nos. 41 to 46 not moved.]

Baroness Cumberlege had given notice of her intention to move Amendment No. 47:

    Page 111, line 27, leave out from "directors," to end of line 28 and insert "including the chief executive, finance director and a medical practitioner (or in the case of a dental trust, a dental practitioner) and a nurse who shall both be registered on the relevant professional registers"

The noble Baroness said: My Lords, I understand that the noble Lord, Lord Warner, has tabled Amendment No. 50 which enables the amendments that we have sought to be enacted. I want to take the opportunity to thank the noble Lord for acceding to the request. I have prepared the most uplifting and arresting speech. Noble Lords will be delighted that I am not going to give it, but I should like to say thank you.

[Amendment No. 47 not moved.]

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Lord Warner moved Amendment No. 48:

    Page 111, line 27, after second "executive" insert "(and accounting officer)"

On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Lord Warner moved Amendment No. 50:

    Page 111, line 29, at end insert—

"( ) One of the executive directors is to be a registered medical practitioner or a registered dentist (within the meaning of the Dentists Act 1984 (c. 24)); and another is to be a registered nurse or registered midwife."

On Question, amendment agreed to.

[Amendment No. 51 not moved.]

Lord Warner moved Amendment No. 52:

    Page 111, line 33, leave out "the public constituency" and insert "a public constituency or the patients' constituency"

On Question, amendment agreed to.

[Amendments Nos. 53 to 57 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 58:

    Page 112, line 3, leave out sub-paragraph (4) and insert—

"( ) The appointment of a chief executive requires the approval of the board of governors."

The noble Lord said: My Lords, noble Lords will have become tired of me talking about the role and powers of the board of governors. Indeed, I am putting on my anorak to have a few more attempts at the issue. I wish that the board of governors had been given more power, but it is important that it is given the right powers. As the Bill stands, I am not sure that it is right that appointment or removal of the executive director of a board of directors should require the approval of a majority of the board of governors voting at a general meeting.

A practical issue is that if that has to be done at a general meeting, it would be very difficult for any organisation to manage. First, a special meeting would have to be called to make an appointment or to remove a person. Secondly, the removal or appointment of executive directors is not really a matter for the board of governors. The people who should know what is required in relation to the executive directors ought to be the non-executives on the board of directors. That is what they are there for.

As regards the dismissal of an executive director, that must be a matter that rests with the non-executives on the board of directors. There is a special case in relation to chief executives. Given their important role, it is right and proper that the board of governors should be asked to ratify that appointment. They should not be asked to approve the dismissal of the chief executive. That, too, should be a matter for the executive directors. I know that my amendment would

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be very welcome in the first wave of foundation trusts. It clears up a problem that many have foreseen in this area. I beg to move.

4.15 p.m.

Baroness Hanham: My Lords, I appreciate that we are speaking to a non-existent schedule. I apologise for my rather late intervention. I support what the noble Lord, Lord Hunt, said. If we are to get anywhere with foundation trusts in any form whatever, it must be correct that the board of directors is responsible for the appointment of the chief executive. In the very unfortunate circumstances where the board does not think that the chief executive is measuring up, the board should also make that decision. Therefore, I strongly support what has been said. I hope that the Government will listen.

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